Nagoya Protocol to enter into force in October

An international instrument geared at helping countries regulate the utilisation of genetic resources - such as plants used for medicinal or consumption purposes - is set to enter into force on 12 October 2014, after surpassing the required number of ratifications. The treaty is scheduled to come into force 90 days after the 50th ratification by participating countries.

The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (CBD), as the protocol is formally known, will provide a legally binding global framework to determine how genetic resources are accessed and ensures that benefits arising from their utilisation for research and development are distributed in a fair and equitable manner (ABS).

“The Nagoya Protocol is central to unleashing the power of biodiversity for sustainable development by creating incentives for the conservation and sustainable use of biological diversity while guaranteeing equity in the sharing of benefits,” said Braulio Ferreira de Souza Dias, Executive Secretary for the CBD.

The Protocol was designed to implement one of the three main objectives of the CBD, itself among the international conventions agreed to at the landmark 1992 Rio Earth Summit. The CBD is tasked with promoting the conservation and sustainable use of biodiversity.

“Practical tools such as the Nagoya Protocol are critical for the sustainable and equitable use of biodiversity,” said UN Secretary General Ban Ki-moon, welcoming this week’s ratification news.

Japan, which hosted the meeting at which the Protocol was adopted and put forward the compromise text that helped countries reach an agreement, has not yet joined the list of 51 countries that tipped the Protocol entry into force over the edge – reportedly due to a delay in its domestic procedures.

The 28-member state EU, whose parliament voted on the issue in March of this year, will be a party to the protocol and is legally bound by its terms but does not count towards the 50 instruments required for entry into force, says the CBD.

In the same March sitting the trade bloc’s parliament approved a proposal to implement mandatory elements of the Protocol regarding ABS at the EU legislative level, which some experts have said could help to bring on board EU member states that still need to ratify. (See BioRes, 18 March 2014)

The passing of the 50 ratification threshold comes just in time for the 12th Conference of the Parties (COP) to the CBD, scheduled for 6-17 October in Pyeongchang, South Korea, meaning participating countries will hold the Nagoya Protocol’s first formal meeting on that occasion.

Last minute agreement

The Nagoya Protocol was signed in 2010 in the Japanese city from which it take its name. Agreement around the protocol, together with accords on its financing and a strategic work plan, came at the end of the CBD’s tenth COP after days of debate.

For much of the conference, some observers feared that delegates would not be able to clinch a deal, as discussion became bogged down in a number of contentious issues.

The final package, although broadly welcomed as a useful first step, was labelled as “ambiguous” by some experts with regards to what was agreed in certain key areas.

These included issues such as whether the protocol would have a retrospective effect, definitional issues around what to include within the scope, the functioning of a compliance mechanism, and the relationship to other international organisations and legal instruments (See BioRes, 8 November 2010).

However, the agreed-upon protocol also contained some landmark elements, according to experts. These ranged from measures to encourage prior informed consent and benefit sharing where traditional knowledge associated with genetic resources is accessed to encouraging countries to take into consideration the customary laws and community protocols of indigenous and local communities with respect to traditional knowledge associated with genetic resources.

Experts have said that this latter aspect, although cautiously worded by the negotiating parties in Nagoya, is a significant addition to international law and correlates with similar text in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) adopted in 2007.

"With 51 ratifications, Nagoya Protocol to enter into force in October," INTELLECTUAL PROPERTY WATCH, 15 July 2014; "Nagoya Protcol to take effect in October, but Japan has yet to ratify it," THE ASAHI SHIMBUN, 16 July 2014.